KABIR AHMED Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. Rajib Dev, learned Counsel for the Petitioner.

(2.) The Petitioner, challenging the impugned order dated 12.7.10 and 6.8.10 passed by the learned Addl. CJM, Golaghat in GR Case No. 700/09 (corresponding Dergaon PS Case No. 76/09) directing to issue NBWA against the Petitioner, has preferred this application under Section 482 Code of Criminal Procedure.

(3.) On the basis of an FIR lodged by one Tomir Ahmed for alleged commission of offence by the Petitioner under Section 366 (A)/368 IPC a complaint case being CR No. 1956/09 was filed in the Court of learned CJM, Golaghat and the same was forwarded to the O/C Dergaon for necessary investigation and registration of the case as Dergaon PS case. Accordingly, the case was registered as Dergaon PS Case No. 76/09 under Section 366(A) IPC and after completion of the enquiry the I.O. having found prima facie case, submitted the charge sheet against the Petitioner under Section 366A IPC showing the Petitioner as absconder. The charge sheet was drawn on 31.5.10 being charge sheet No. 34/10 and the same was transferred to the learned Addl. CJM for neccssary disposal on 12.7.10 when on the first day. the learned Addl. CJM passed an order directing to issue NBWA against the Petitioner. In the aforesaid order it is not disclosed that the Petitioner was absconder. Without following the procedure prescribed under Section 82/83 Code of Criminal Procedure and in compliance of the provision of law as laid down in the case of Nazrul Islam v. State of Assam and Ors., 2008 1 GauLT 979, it appears that the learned CJM hold to issue NBWA against the Petitioner as the Petitioner was described as absconder by the I.O. It is needless to reiteraie that a police officer has no authority under the law to declare a person absconder. It is the judicial Court who can only pass an order as absconder but that does not reflect in the order. On 6.8.10 again such direction to issue NBWA was issued to the Petitioner fixing the case on 31.8.10.